Does Oklahoma Recognize Common Law Marriage?
Oklahoma does not recognize common law marriages. Individuals born and residing in Oklahoma who enter into a common law marriage are advised to enter into a formal marriage recognized by the state of Oklahoma.
The Oklahoma Supreme Court ruled in 1998 that the state district court did not have the authority to recognize common law marriages after 1996. The ruling was relied upon in subsequent cases and unless a common law marriage was in effect prior to 1996, the Oklahoma Supreme Court has maintained its stance.
Further challenges to the 1998 ruling were litigated through Oklahoma federal courts in 2000 and 2001. In Campbell v. Campbell, the judge declared that the prohibition of common law marriage in Oklahoma was unconstitutional under the United States and Oklahoma Constitutions . The judge transferred the case to the Oklahoma Supreme Court, which maintained the 1998 ruling.
Legislators took legislative action by passing the Common Law Marriage Act of 2002. It declared that no new common law marriage would be recognized as of Nov. 1, 2002. The act further stated that married individuals would be recognized as married on Aug. 25, 1997, if certain conditions applied.
Several court rulings since 2002 reaffirmed the Oklahoma Supreme Court position. In McGowan v. McGowan, the judge again found the 1998 ruling to be constitutional.
A 2019 Oklahoma federal court ruling in West v. West ruled that the state does not recognize common law marriages, but it will recognize such unions if entered into and recognized in its home state.
A Brief History on Common Law Marriages in Oklahoma
The historical context of common law marriage in Oklahoma has undergone a significant evolution from the territory days to present time. In 1890, Oklahoma’s initial statutory framework began to emerge when the territorial legislature enacted a recognition of common law marriages, albeit only on a limited basis. At that time, marriage was not a licensed or recordable act. The option for individuals to declare their intent to be wed by entering a written contract, known as a "deed of marriage," was created by the territory’s first governor, J.C. Haskell. Thus, prior to 1890, those seeking a legally recognized marital relationship could opt for either a traditional priestly union or enter into a contractual agreement. Subsequent legal developments in Oklahoma created more threshold requirements for common law marriages in the state. In 1907, Oklahoma’s constitution was adopted and effectively brought about the complete abolition of any forms of marriage other than a prenuptial license. While the constitution expressly stated that all existing individuals legitimately married under previous Oklahoma law would be considered legally married, it also removed any ability to enter into a common law marriage. Even on the federal front, the Supreme Court of Oklahoma expressly acknowledged that the Constitution’s language prohibited the further creation of new common law marriages in the state. Notable cases in Oklahoma’s evolution of common law marriage include the 1980 case Hanes v. Haines, which ultimately led to the reinstatement of common law marriage in Oklahoma. In this case, a live-in couple had been living together for several years, but without the benefit of a license to marry. When the couple ended the relationship, one party sought to have the other declared a common law spouse so that they could be entitled to some of the assets acquired during the marriage. However, because the couple had not made a public declaration of intent, as then required under Oklahoma law, the court opined that the parties did not meet the requirements for a common law marriage. Shortly thereafter, in 1982, the legislature passed a law that would abolish the requirement of a public declaration of intent. However, the law was vetoed by then-Governor George Nigh, and thus, since 1982, a common law marriage can still be established in Oklahoma through mutual agreement on the marriage and cohabitation subsequent to the agreement. In 1993, the Oklahoma legislature passed the Uniform Marital Act, which eliminated the prerequisite of a contract made in words. Instead, the law recognized as valid the "mutual consent" of the parties to marry. Under the Uniform Marital Act, two additional requirements were imposed: cohabitation, and representation to others of the marriage. In 2013, in the case titled Moore v. Anderson, the Oklahoma Supreme Court again revisited the issue of common law marriage after a considerable lapse in such litigation. No longer was it sufficient to prove the existence of mutual consent and cohabitation. The court effectively concluded that the Uniform Marital Act overruled any line of cases discussing the cohabitation requirement. The court also examined the contemporaneous definition of "cohabitation" as provided within the statute: "The two persons must hold themselves out as a married couple and conduct themselves in all respects as a husband and wife." Thus, Oklahoma’s courts have adopted the position that, for purposes of establishing a common law marriage, the cohabitation requirement now includes the additional requirement of representing oneself as married.
What You Need for a Common Law Marriage
In jurisdictions where common law marriage is recognized, some of the typical elements that are needed to establish a common law marriage include: (1) the absence of a license; (2) cohabitation; (3) mutual agreement; (4) consideration; (5) general reputation; and (6) consummation. Different jurisdictions have different requirements for establishing common law marriage. For example, Mississippi requires that there be a marital capacity; mutual consent; public recognition; and cohabitation. Further, in Mississippi, once a valid common law marriage is established, the subsequent ceremony is not a new marriage but rather it is a confirmation of the marriage.
In Oklahoma, if common law marriage were recognized, determination of whether a valid common law marriage was established would likely rest on a set of factors, including: (1) lack of a license; (2) cohabitation; (3) mutual agreement; (4) consideration; (5) marital reputation; (6) consummation; and/or (7) intent of parties that there was a marriage. Thus, in Oklahoma, it may be that a valid common law marriage is established where the parties lack a license but demonstrate intent to be married, and mutual consideration, or contractual agreement, to be married, coupled with cohabitation, etc.
Common Law Marriages: Legal Effects
Legal Issues of Common Law Marriage in Oklahoma
Entering into a common law marriage comes with a host of legal implications for those involved in a relationship that meets the elements for standing as a common law marriage in Oklahoma.
Property Rights
Understanding property rights is very important to those in a common law marriage, as it has direct implications for the division of property should the couple separate or head to court for distribution of assets. The basic understanding of property division in a common law marriage is identical to that of a ceremonial marriage in Oklahoma. In a common law marriage , all property acquired during the marriage is joint property, and the courts will divide any joint property fairly upon divorce or separation.
Spousal Support
A common law marriage in Oklahoma does not have any effect on the ability of a spouse to collect alimony or spousal support. If the court determines that alimony is equitable, the court will award alimony whether the parties were formally married or joined by common law marriage.
Inheritance
All parties are presumed to be equal heirs under a common law marriage in Oklahoma. This means that one spouse does not automatically inherit solely due to a common law marriage and without a formal will.
Common Law Marriage Alternatives in Oklahoma
Unlike states that recognize common law marriage, Oklahoma does not extend any marital rights or benefits to unmarried individuals who live together. Various alternatives are available for people who wish to formalize their relationship and protect their rights and interests in the event of a breakup or the death of one of the parties. Cohabitation agreements are one of the most practical ways for unmarried couples to ensure that their relationship is treated similarly to a marriage in the event of a breakup. A well drafted cohabitation agreement can clarify issues such as the division of property and assets acquired during the course of the relationship, whether alimony (spousal support) will be paid if one party decides to leave, and how the parties will handle child custody and child support if they have children together. Such agreements can be complicated, however, and should only be drafted by a skilled family law attorney experienced in Oklahoma divorce and child custody issues. Civil unions, domestic partnerships, or similar arrangements are another way to legally recognize a relationship. These arrangements can include the same responsibilities and benefits as a marriage. With these arrangements, you may be able to share health insurance or make decisions for your partner in the event of a medical emergency, but the details of each civil union arrangement are unique. Couples considering a civil union should talk to a family law lawyer to determine the best solution for their individual circumstances. If you are an unmarried couple considering civil union, cohabitation agreements, or other arrangements, it is important to seek the advice of an experienced Oklahoma family law attorney. If you are legally separated from your spouse but have yet to finalize a divorce, you should also consult a knowledgeable divorce attorney to avoid any possible legal pitfalls.
How to Legally End Your Common Law Marriage
If common law marriage is found by the state to exist, the legally adequate way to disestablish it is to file for a legal separation or divorce. It is possible to do so without finding an attorney. There are various forms on the Internet, from local sources such as the courthouse, and local legal aid offices, as well as those for large, commercial publishers (e.g. Nolo Press). But it is not difficult to make mistakes and create unnecessary problems when filing forms on your own . The safer, if more expensive, route is to hire an attorney to handle your case for you. A judge hearing all of the facts of your case will decide whether to grant you a legal separation or divorce. As a general rule, however, if you were married in a common law states for an adequate amount of time, then a judge will disestablish the common law marriage. All of the issues related to that marriage or divorce will then be settled as if there was a formal marriage.